This opinion by Judge Lamberth was issued on September 24, but appears to have just been posted publicly in redacted form. Because of the procedural posture, the court accepted as true all the allegations in the government’s factual return, and on that basis found that Ali is detainable as a functional member of “enemy forces” within the scope of the AUMF. Whether the government will be able to prove these factual allegations at the merits hearing remains to be determined, of course, but in the meantime the opinion is another useful opportunity to understand what past conduct suffices in the eyes of the judges to merit detention (assuming that conduct can be proven).

Here, the discussion is partially redacted, but it appears the court found significant a range of factors including the receipt of military style training (on at least two occasions in this instance), the use of a kunya (alias), the fact that other members of the enemy force knew this person by that kunya, the possible use of other aliases suggesting the petitioner was from Libya, claims by others that they saw petitioner in Afghanistan acting as a “driver” (presumably for al Qaeda), and the fact that petitioner was in Afghanistan in fall 2001 and then later was captured in Pakistan at the “Zubaydah house.” Judge Lamberth specifically rejected the claim that reliance on his presence at the Zubaydah house amounted to guilt by association.

In these orders Judge Leon dismisses habeas petitions sought to be maintained by former GTMO detainees who allege that they remain in constructive US custody despite being transferred to Libya, Tunisia, and Afghanistan and that they continue to suffer consequences because of their earlier detention (specifically, detention by their own governments). Judge Leon dismissed the first ground for continued jurisdiction as “rank speculation,” citing Munaf v. Geren and the DC Circuit opinion in Kiyemba as authority for not second-guessing the executive branch assertion that the continuing detention is not “on behalf of the United States.” Judge Leon dismissed the second ground for similar reasons, and also because the court lacks authority to order a foreign government to release these individuals.